The prosecution of criminals operating across borders is more of a focus for governments and law enforcement agencies than ever before, particularly in an era where increased technology and ability to travel have essentially created fluidity around borders. This is of particular concern in the areas of terrorism, cyber crime, money laundering and dissemination of criminal material including hate speech and child pornography.
When crimes are committed transnationally, law enforcement from all countries involved (including where the perpetrator is active, where the victims of the crime reside or where its impacts could be felt) must cooperate in order to ensure that apprehension and prosecution occur.
One of the tools available to facilitate this cooperation is the concept of Mutual Legal Assistance (MLA). However, the current MLA regime has struggled to meet the demands of the increasing influx of requests for digital evidence.
In a 2015 report commissioned by the Global Network Initiative, Data Beyond Borders: Mutual Legal Assistance in the Internet Age, author Andrew K. Woods identifies flaws in the MLA process and recommends reforms.
How does MLA work?
MLA is the process of sharing evidence about criminal investigations or prosecutions across international borders.
The process consists of the following steps:
- A law enforcement agency will identify evidence that is located overseas and make a request to their central authority (in Australia this is the International Crime Cooperation Central Authority)
- The central authority either approves or refuses the request. If approved, the request is sent to the foreign country.
- That foreign country’s central authority either approves or refuses the request. If approved, the foreign country delivers the evidence to the requesting country.
- The requesting country uses the evidence in their investigation or prosecution.
Why are reforms needed?
The extremely slow and ineffective MLA process invites law enforcement officials to carry out alternative, adverse measures to obtain data, including claiming the extraterritorial application of their state’s domestic laws, enforcing companies to store data within that state’s borders (data localisation) and even government surveillance. These are nowhere near as effective as a properly functioning MLA regime would be.
The report proposes three critical reforms – improving MLA technology, educating law enforcement and better staffing.
Improving technological capabilities of MLAs
To improve the slow, non-uniform MLA process, the report suggests that the transmission and evaluation of MLA requests and responses should be electronic.
A centralised digital portal would facilitate swift and simple review of the adequacy of requests. Additionally, digital evidence should be passed back to the requesting country electronically as opposed to physically (as is currently the case). Secure internal tracking systems should also be established. This will allow states to easily ascertain the progress of data requests.
Providing MLA-specific training
The most straightforward response to MLA reform is to ensure that requesting law enforcement officials are trained adequately. Many requests do not satisfy legal obligations, and communication both locally and between foreign states is poor.
The proposed electronic system would improve the current defects in communication. The report suggests that requesting countries should also be trained to filter requests that may violate human rights.
The training should be carried out by law enforcement authorities, international organisations and companies. Internet and communication companies are often the first to receive requests for access to data. These companies should develop existing training programs or introduce new programs.
The report recommends that international organisations such as Interpol and the UN Office of Drugs and Crime should implement publicly available training codes. Companies will then have access to the suggestions of international organisations when advising local law enforcement.
Each country has a different legal standard in place to determine when the seizure of evidence is warranted.
Requesting countries should explain these standards to their Mutual Legal Assistance Treaty (MLAT) signatories, and law enforcement officials should frame their requests in conformity with these standards.
The report suggests that a handbook cataloguing the legal standards of each country should be published by an international organisation.
A standardised MLA request form is also suggested. This would remedy the delays in dealing with unsatisfactory requests and assist in satisfying the receiving country’s legal requirements.
Improving the MLA information request system
There are not enough people handling the increasing number of requests for each request to be reviewed effectively.
Governments must ensure the system is adequately staffed. Each country needs to publicly disclose their legal requirements for satisfying MLA requests and ensure these requirements are disseminated to law enforcement bodies around the world.
Instituting time limits for completing MLA requests would expedite the process and ensure government accountability. The report states that requests should be completed within 30 days.
International transparency efforts
Internet and communications companies produce transparency reports outlining the frequency and management of data requests they receive. Governments responding to requests need to inform these companies which country the request has come from. Accurate reporting would assist companies in complying with their human rights obligations.
Countries should also produce transparency reports identifying the origin, number and character of requests. This would guide policymakers in implementing effective reform.
Focus on corporate policy
Although states need to improve current MLA agreements and policy, companies can take action where state guidance is lacking. Communication companies are sometimes regarded as making opaque decisions concerning the data they disclose, based on their own interpretation of the law.
Companies should inform local law enforcement what type of data they will disclose in conformance with local law where MLA is not required and what type of data requires an MLA request.
Companies that are permitted to hand data over to other countries should follow the principles of the Global Network Initiative to prevent a potential breach of human rights.
MLAs are a device which should assist law enforcement agencies worldwide to collaborate smoothly in attempts to capture, prosecute and punish crimes being committed across borders. However, the current MLA regime is ineffective in many ways. If adopted and implemented, proposed reforms intended to improve the way in which MLAs work in practice could have a significant effect on the way in which international crimes are dealt with.
Nyman Gibson Miralis provides expert advice and representation in complex transnational cases involving extradition and mutual legal assistance.
Contact us if you require assistance.